PANKAJ AND ANR. Vs. STATE OF U.P.

JUDGEMENT

(1.) This criminal appeal has been directed against judgement and order dated 22.3.2014 passed by the then Additional Sessions Judge, Court No.6 Special Judge, NDPS Act , Meerut holding consolidated trial due to common recovery memo, in criminal case No. 41 of 2011 ( State vs Pankaj ) arising out of crime No. 24/2011 and in criminal case No. 40/2014 ( State vs Sardar Ali ) arising out of crime No. 25/2011, both under Section 20 (b) (ii) (C) of NDPS Act , P.S. Lal Kurti, District Meerut, whereby both the accused appellants have been held guilty and awarded punishment under Section 20 (b) (ii) (C) of NDPS Act , of 10 years rigorous imprisonment, fine of Rs. 1,000,00/- and in default of payment of fine one year's additional simple imprisonment, each.

(2.) In brief the facts of the case are that on 31.01.2011, A.S.I. Om Veer Singh (P.W. 1) along with S.I., Brijpal Singh (P.W. 2), Constable Jugal Kishore and Constable Rajendra Singh had started from P.S. Lal Kurti at report no. 40, time 22.30 hours, in search of wanted criminals by Official Jeep. When they reached near Tank intersection they met S.I., Vineet Singh of S.O.G., Constable Ram Prasad Singh, Head Constable Sunil Sharma, Constable Jarrar Hussain, Constable Sateesh Kumar, Constable Manoj Kumar, Constable Pravesh Kumar and Constable Dharmendra Singh, Constable Vikas Sharma and driver Ashok Tewatia, also who were also performing checking work in their Tata Sumo, right then one motor-cycle came there with 2 persons on it, who after seeing police personnel started moving back towards Mal Road. The police party became suspicious and directed them to stop but they did not stop. The police after chasing arrested them about 15 steps away from that intersection about 23.05 hours. After being arrested, they divulged that they were in possession of illegal charas and hence due to apprehension of arrest, they were trying to flee. A.S.I. and his companions told them that they could give their search in presence of a Magistrate or a Gazetted Officer. On this, both of them stated that since they had already been arrested, police party itself could take their search as they had full faith in them, thereafter, the consent letters were prepared. One of them disclosed his name to be Pankaj, who was carrying a floral ''thaila', which was opened, and inside it were found three packets of charas wrapped in polythene, out of which in one, two ''batti' type and in another one ''laddoo' type charas was found. The other accused disclosed his name as Sardar Ali, and from a piggybag strapped to his waist, two packets were recovered, out of which in one packet "batti" type charas and in other "Laddoo" type charas was found. A.S.I., Om Veer Singh had been sent for bringing weighing machine and the recovered contraband was weighed on the spot which turned out to be 4 kilogram illegal charas in each of the five polythenes. From each of the 5 polythene, 100 grams each was taken out as sample, which were kept in separate polythenes and all the 5 samples were kept in separate polythenes and were sealed and the samples of seals were prepared. Both the accused were apprised about having committed offence under section 18 / 20 of NDPS Act and were taken into custody. Both of them disclosed that the said charas was to be delivered to their companion Mahesh Kumar and one Ram Baran. The recovery memo (Exhibit Ka 3 ) was dictated by S.S.I. to S.I. Brijpal who prepared the same in the light of torch. The said recovery memo was read out and signatures of both the accused and the witnesses were taken thereon and the arrest memo was prepared. The papers of the motorcycle were demanded, which could not be shown. Due to it being night time, the witnesses of public could not be available. The information about arrest was given to their family members. On the basis of the recovery memo, Case Crime No. 24/11 was registered against Pankaj and Case Crime No. 25/2011 was registered against Sardar Ali, both under Sections 18 / 20 of N.D.P.S. Act at P.S. Lal Kurti on 1.2.2011 at 1.30 hours, Chick F.I.R. of which is paper number 4 Ka (Exhibit Ka 13) and its entry was made in G.D. (Exhibit Ka 14) of the same date at report No. 3 time 1.30 hours. The investigation was handed over of both the crime Nos. to S.I. Shri Shyam Lal (P.W. 6) who prepared the site-plan (Exhibit Ka 19) at the instance of S.I. Brijpal Singh. On 13.2.2011, he sent the sample of contraband substance to Forensic Science Lab for being tested through constable Vir Bhan Singh and the report was received back on 28.4.2011 indicating that the sample was found to contain charas. The F.S.L. report pertaining to accused Pankaj is Exhibit Ka- 22 and the report of F.S.L. pertaining to accused Sardar Ali is Exhibit Ka-23. He submitted charge- sheet (Exhibit Ka-20) against Pankaj on 28.4.2011 and against Sardar Ali on the same date which is Exhibit Ka - 21. Head constable Dev Pal Singh has proved Malkhana register of the year 2011 in which entries were made with regard to depositing the recovered contraband substance, which are Exhibit Ka-16 and Exhibit Ka-17. The consent letter prepared under section 50 of NDPS Act of both the accused appellants are Exhibit Ka-1 and Exhibit Ka-2. The investigating officer filed separate charge sheets against both the accused. P.W. 1 has proved arrest memo, information memo and medical examination memo of accused Pankaj which are Exhibit Ka-4, Exhibit Ka-5 and Exhibit Ka-6 respectively and the same documents relating to accused Sardar Ali are Exhibit Ka-7, Exhibit Ka-8 and Exhibited Ka-9 respectively . Both the files were consolidated vide order dated 29.3.2013 and the file of case number 41/11 was made the leading file/case.

(3.) On the basis of evidence on record the final charges were framed against both the accused under Section 20 C of NDPS Act to which they pleaded not guilty and claimed to be tried.